Supreme Court Fishery Case Could Upend the U.S. Regulatory System

Typically, what happens aboard herring fishing boats off the New Jersey coast concerns few people who do not fish for herring off the New Jersey coast. But a Supreme Court case on a fishery-related dispute threatens to upend how the government creates and enforces all kinds of regulations.

On Jan. 17, the Supreme Court heard oral arguments in a case between groups of herring fisheries and the regulatory power wielded by the agency that oversees them. At the heart of the case is a doctrine known as the Chevron deference, a bedrock high court decision that has been in place for 40 years. It gives federal agencies, rather than courts, the power to interpret ambiguous statutes and, as a result, create and enforce regulations.

If the court’s decision overrules Chevron this spring, it could have significant implications for the entire federal regulatory system.

The Chevron deference refers to the high court’s decision in the 1984 case Chevron v. Natural Resources Defense Council. It’s a foundational doctrine that has long defined the regulatory reach of the judiciary and the executive branch.

The Chevron deference requires a two-step process: The court must determine if statutory language is clear — and if it’s not clear, then it must defer to the agency the statute falls under for its reasonable interpretation. In practice, it enables federal agencies to create regulations based on their own interpretations, the idea being that an individual agency has expertise in certain areas that the court may not.

The Chevron doctrine has loomed large over the federal courts since its inception. It has been cited in more than 19,000 federal court cases, according to a count of citations listed the legal database Lexis Nexis.

Critics of Chevron say the doctrine gives federal agencies of the executive branch excessive power to make regulations that, they assert, should fall under judicial authority. They argue that those who work in federal agencies are not elected officials and therefore have no accountability to the American public.

Those who support Chevron say it’s critical to allow federal agencies to make decisions in areas where courts lack expertise. For example, the National Resources Defense Council, a nonprofit environmental advocacy group, says “… given the complexity of weather patterns, EPA [Environmental Protection Agency] scientists are better equipped than judges at determining how much a state should curb its air pollution in order to protect people living in other states downwind.”

The Supreme Court is taking up Loper Bright Enterprises v. Raimondo and its companion case Relentless, Inc. v. Department of Commerce.

The Magnuson-Stevens Act, first passed in 1976 and reauthorized in 2007, enables the National Marine Fisheries Service, an office of the National Oceanic and Atmospheric Administration that falls under the Department of Commerce, to monitor commercial fishing to ensure ethical and sustainable fishing practices. The Department of Commerce is under the executive branch of the federal government.

The plaintiffs are a group of New Jersey herring fishers. They are challenging a rule by the National Marine Fisheries Service that requires fisheries to pay for observers to be aboard fishing vessels to monitor how many fish are caught and ensure the fisheries are not overfishing according to federal regulations.

The plaintiffs say Congress never gave the executive branch the power to require fisheries to pay for the monitoring, a rule that they say forces them to give up 20% of their earnings. They also argue that the Chevron deference violates Article 3 of the Constitution, which gives courts the power to interpret laws, as well as the Administrative Procedure Act of 1946, which governs the process of how federal agencies create regulations.

In the Supreme Court filing, the plaintiffs say “the Court should jettison Chevron altogether — or at least narrow its scope.”

In general, overruling Chevron would have the greatest impact in lower courts. If the Supreme Court overturns or limits the doctrine, a few possibilities could then play out:

• Courts would no longer need to defer interpretation to federal agencies. Courts would hold the power to interpret any ambiguous statutes. As mentioned above, critics argue that Chevron is typically invoked to deal with technicalities that require specific expertise in a given area. Without Chevron in place, judges would be able to hand down interpretations without that knowledge base. 

• Every federal agency’s powers would diminish. Agencies like the Environmental Protection Agency, the Department of Health and Human Services, the U.S. Food and Drug Administration, the Department of Labor and others would have less strength to set regulations and enforce them.  

• Existing federal regulations could be overturned, too. Without Chevron, new legal challenges to all kinds of existing regulations could emerge. According to the Center for American Progress, a left-leaning think tank, it could result in alterations to or the elimination of labor regulations; consumer protections; climate-related regulations like emissions-reductions; as well as Medicare and Medicaid statutes.

Overturning Chevron would be the latest decision by the conservative majority Supreme Court with implications for federal agencies’ interpretation authority. In 2022, the high court began to point to the “major questions doctrine” in majority opinions. It means that courts have the authority to reject an agency’s interpretation of statutes on major questions — as in, anything that has significant economic or political ramifications — if the statutes don’t demonstrate clear authority from Congress to do so.

Widespread coverage of the high court’s oral arguments hearing in January suggests a strong likelihood that Chevron would be overturned. Of course, nothing is certain.

The Supreme Court will hand down its decision in the case sometime this spring. The high court session concludes at the end of June.

(Photo by Joe Raedle/Getty Images News via Getty Images)